Michael Guidry and Wanda Guidry, Individually and On Behalf of Their Minor Child, Jonathon Guidry VS Livingston Parish Sheriff's Department, St. Paul Fire & Marine Insurance Company, Livingston Parish School Board, Children's Edition Daycare, Gaybe Horner, Interstate Insurance Underwriter's, Inc., Joe Sasso, Robert Dicks and State Farm Mutual Automobile
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 CA 1976 MICHAEL GUIDRY AND WANDA GUIDRY INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD JONATHON GUIDRY VERSUS LIVINGSTON PARISH SHERIFF S DEPARTMENT ST PAUL FIRE AND MARINE INSURANCE COMPANY LIVINGSTON PARISH SCHOOL BOARD CHILDREN S EDITION DAYCARE GAYBE HORNER INTERSTATE INSURANCE UNDERWRITER S INC JOE SASSO ROBERT DICKS AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Judgment Rendered On AUG 1 8 2009 Appeal from the Twenty First Judicial District Court In and For the Parish of Livingston State of Louisiana Docket No 106320 Honorable Elizabeth P Wolfe Judge Presiding Lewis O Counsel for Plaintiffs Baton Michael Unglesby Rouge Louisiana Appellees Guidry and Wanda Guidry individually and on behalf of their minor child Jonathon Guidry and Justin A Baton Day Rouge Louisiana Stephen D Metairie Louisiana Enright Jr Counsel for Defendants Appellants Livingston Parish Sheriff s Office and Joe Sasso Robert Dicks and St Paul Ja mes L Pate Fire and Marine Insurance Melissa L Theriot Philip H Boudreaux Lafayette Louisiana Jr BEFORE 0 lc I iJ j c PARRO J Cj McCLENDON AND WELCH JJ a CYl U2dA 4 Company McCLENDON J The defendants appeal the judgment of the trial plaintiffs awarding damages resulting from reasons that follow we court in favor of the automobile an accident For the affirm FACTUAL AND PROCEDURAL HISTORY On December 18 pickup truck Gaybe Horner west in the daycare s a an an van on Cecil Drive to make Sasso and Robert L Dicks in a zone were van and Mr the van were Daycare lane street a and southbound was As she traveling approached left turn onto the southbound lane of Livingston Parish Sheriff deputies Joseph on Guidry at the intersection which out to the northbound lanes of was Highway Deputy Sasso had already stopped the southbound traffic the through stopped traffic Edition directing traffic Highway 16 and signaled Ms Horner 16 a two a Deputy Dicks walked stop traffic Highway Highway 16 is the northbound s in his accident occurred between the two vehicles J 16 to traveling northbound was Springs Louisiana employee of Children At the time of the accident two school Guidry median between Highway 16 and attempted Highway 16 Michael in Denham Highway 16 highway with four lane lanes on 2003 to proceed however intersection Highway 16 resulting s pickup truck Mr injured across the northbound lanes of Deputy Dicks had in the collision between Neither Ms Horner on nor Ms not yet Horner s any of the children in Guidry did not immediately seek medical assistance and did not believe that he sustained any injuries in the accident until sometime later Subsequently Michael behalf of their minor child Parish Sheriff Company 1 The LPSO St was s Office Paul named the Guidry and Wanda Guidry Jonathon LPSO its insurer Deputy Sasso Livingston Guidry filed St Paul suit 2 s on against the Livingston Fire and Marine Insurance Deputy Dicks Parish Sheriff individually and Department Livingston Parish School in the plaintiffs petition 2 Board Ms Children Horner Edition s Vanguard Insurance Company the Daycare 3 Republic and Mr insurer State Farm Mutual Automobile Insurance suffered damages he suffered as a to his neck and back injuries medical treatment consortium claim A two second result of the accident Mrs day bench trial Horner was held Children on was s as Mr Guidry contended a loss of informed that Daycare a At the start of the settlement had been and 4 Republic At the judgment in favor of the plaintiffs and of the fault against LPSO 5 Damages follows Future Medical Past Medical Past Loss Specifically for which he has received extensive Edition against LPSO and St Paul assessing 100 awarded Company asserting that they August 29 30 2007 conclusion of trial the trial court rendered were uninsured motorist Guidry s injuries day of trial the trial court reached with Ms s Guidry and Jonathon Guidry each asserted result of Mr as a Guidry Republic insurer van s 32 000 00 Expenses 28 752 38 Expenses 152 999 00 Wages Future Loss Wages 572 085 00 Suffering Loss of Enjoyment of Life Past Future 100 000 00 Pain and Disability 75 000 00 Loss of Consortium for Wanda Guidry 55 000 00 Loss of Consortium for Jonathon Total 2 The Guidry 10 000 00 1 025 836 38 Judgment Livingston Parish School Board was dismissed with prejudice prior to the trial of this matter 3 The plaintiffs originally filed suit against Interstate Insurance Underwriters Inc but by an amending and supplemental petition substituted Republic for the previously named defendant Interstate Insurance Underwriters Inc 4 5 Judgment was subsequently signed on November 2 2007 At the course policy dismissing these defendants beginning of trial the parties stipulated that Deputies Sasso and Dicks were in the and scope of their employment at the time of the accident and that St Paul issued a of liability insurance to LPSO which was in full force and effect on the day of the accident 3 Judgment signed was on suspensively appealed October 2 2007 assigning LPSO and St Paul the award of as error earnings and the lack of any allocation of fault as to the defendants s past and future lost Ms Horner DISCUSSION The defendants initially assert that the trial damages for the loss of past and future earnings already disabled was that the trial court erred in sufficient to were awarding 2003 accident and was Specifically the defendants allege holding that the neck injuries sustained in the prevent Mr Guidry from returning to work in his previous capacity rather than requiring the plaintiffs capable of working absent the accident was in contending that Mr Guidry at the time of the December 18 scheduled for back surgery later that month accident court erred to prove that Mr In other words Mr Guidry existing and ongoing back problems prevented him from returning Guidry s pre to work regardless of the accident with Ms Horner Thus according to the defendants the plaintiffs failed in their burden of proving that Mr Guidry gainful employment but for the accident that the trial court requiring To a de would have been Further standard p La 2 10 06 La plaintiff s 00 1918 App v 1 Cir p must prove by deposition 5 La award of lost wages is damages State positively that he 6 10 05 Dr Rand M 4 3 01 subject must be Boyette v 783 So 2d 1276 to the manifest proven with error reasonable Dept of Transp and Development 04 906 So 2d 695 924 So 2d 174 and 05 2242 which time Mr down his Assn trial court In this matter testified a earning wages but for the accident in question Boudreaux 13 the defendants contend court of review because such certainty 0985 a by this for actual wage loss United Services Auto 1280 capable of applied the incorrect legal standard regarding lost wages novo review recover Therefore was 705 writs denied La 2 17 06 Voorhies Mr leg for the past five years severe A CT 4 924 SO 2d 1018 Guidry s treating neurosurgeon He stated that he first saw Mr Guidry complained of Guidry in July of 2001 intermittent low back scan 05 2164 revealed a at pain radiating disc herniation at the level Ls Sl and mild annular disc Additionally Mr Guidry had undergone Therefore restrictions of and pounds August 7 on advised Mr lifting no no Dr 2001 than 40 more Mr Voorhies no stooping reported that a small but levels 6 more than 20 Dr Voorhies also squatting or work on Dr Voorhies noted that ongoing axial joint pain critically placed left sided herniation at Ls Sl nerve root that he Voorhies further discussed with Mr fusion in the future to treat the Mr that after likely that his chronic Mr a s Dr three level disc Guidry did Voorhies Guidry a Guidry that he had likely prevent him from returning at the Ls Sl level to treat Mr sciatica of those structures more Dr s Guidry clearly had Guidry the possibility of Therefore operator Mr it was ongoing axial joint pain fusion because it would most microdiscectomy one or think not Dr Voorhies discussed with emanating from was heavy equipment causing Mr Guidry did degenerated discs in his low back and that joint pain Upon examination Dr Guidry would be disabled although Mr at which Guidry again until November 2003 Guidry Mr advised microdiscectomy axial Guidry frequent lifting of Guidry complained of worsening left sciatica Voorhies three L4 s Guidry to quit smoking and lose 100 pounds appeared to be distorting the left Sl Dr and Mr placed Guidry had lost fifty five pounds since his last visit Voorhies a L3 4 disc excision at the L4 s level in 1989 pounds prolonged bending Dr Voorhies did not see Mr time Mr a the at bulging not want to work as a recommended sciatica and the prevent the disability The microdiscectomy December 31 Dr 2003 Voorhies testified placed 6 7 on him in a work release to Mr performed by a to an office strenuous Dr Voorhies Dr was same Voorhies answered performed by Dr on or up to Either way work restrictions Dr as affirmatively that the Anthony Ioppolo established that he continued to work 5 type of job type of job Guidry would still have the August 2001 Guidry s testimony despite these restrictions was patient s release The surgery at the L4 5 level in 1989 Mr Ls Sl Voorhies testified that this type of surgery could take two to six weeks before a twelve weeks for at as a heavy equipment operator surgery a successful and he was prepared was to let Mr Guidry stated that he Voorhies office was next seen in Dr The practitioner a nurse nurse that Guidry herniated Mr complaints of neck pain by the seen at that time On radiating into his left leg and was cleared for work with the same complaints of neck pain In at the L3 4 level a a 8 mild tissue and scar However Dr Voorhies had showed a Although since on the herniations now drying in the disk or his on 2003 and 17 a mild an MRI taken in a April 1996 small amount of And at L5 S1 at that time desiccation of the disk 6 bulge at the L4 s level December 31 2003 Dr Dr same there the 2004 MRI was a new Voorhies had not large seen Mr was an opinion that Mr Guidry should at L3 4 and Ls Sl present disk removed from L4 5 with bulge Dr Voorhies root at Ls S1 Dr Voorhies could not say that more Dr Voorhies also reviewed mild was by Dr seen July of 2004 he stated that if the MRI of October 2004 go back to work some were no nerve appeared the Although it was significant change between the 2003 was a the left pain worse displacing the Sl the L4 s level accurate rendition of his lower back prior again no again no There Guidry told left sided disc herniation at L3 4 and at Ls Sl recurrent disk herniation Guidry was might Guidry Mr dated October repaired the Ls Sl level Voorhies further testified that there Guidry was Guidry had post operative changes herniation Mr Guidry Voorhies testified that the 2003 MRI showed left sided small disc and 2004 MRIs Mr chiropractor and the pain got Dr Mr Guidry reviewing MRIs of the lumbar spine October 4 2004 and Mr complaining of axial neck pain that he had gone to Mr to him in 2001 given 2004 hospital with Guidry had to return to work ready On June 8 Mr April 22 2004 restrictions Voorhies this time disc a practitioner who indicated that nurse the Guidry Dr Voorhies stated that reherniated or that Mr On that date bags complained of pain radiating into his left buttock mean was in doing well post surgery until he was February 25 2004 by on notes indicated practitioner s bronchitis and also lifted too many grocery a to work as heavy equipment operator Mr 8 Guidry go back are which probably than tissue there was not that related to the automobile showed that scar not Mr Guidry had At L3 4 at that time there also a mild bulge a was in the disk with However Dr Voorhies accident in December 2003 at another level could logically stress and strain and cause failure of the disc at the Sl Ls level would either Dr testified 2004 Mr support an orthopedic surgeon with to no studies that specialty a saw Mr Dr Isaza first in spine surgery Guidry complaining of neck and lower back pain was but he did not have accident in December of 2003 the emergency two or three herniation at April 27 on According to C7 Tl as well recommended Guidry s at that point but a cervical MRI bulging disc physical Surgery or Because of the problems with his neck problem C3 4 at made as a to relieve Mr Mr disc a Isaza tried relaxants Guidry Guidry s neck s pain was not area would be to tolerate his unpredictable and symptoms heavy equipment operator or as a His neck full time busboy history given to him by Mr Guidry that he it was Dr Isaza at C7 Tl was caused s opinion that it was more never had any likely than by the accident of December 2003 were painful and symptomatic with the accident prognosis for additional surgery did work Mr Dr muscle Guidry may have had degenerative changes in his neck that were not go to difficulty of the surgery and the shortness of Mr Guidry had been able truck driver waiter automobile which showed therapy on Dr Isaza stated surgery in that Mr an a starting complaining of neck pain injections to try unsuccessful problems would limit his job that the and because of the neck a including medications for inflammation were as problems until Guidry told Dr Isaza that he did Mr Dr Isaza ordered treatment of which any neck after the accident room days later conservative that time lead to the Guidry s history he had previous problems with his lower back including prior surgery all disc herniation refute that or Jorge Isaza Guidry a over although he could point by deposition and at trial Mr agreed that in his lower back was not not Mr asymptomatic Although the good if such surgery Guidry would still have his neck problems Dr Isaza to the accident opined that the reherniation as at the Ls Sl level was not it occurred after Dr Voorhies surgery at Ls S1 7 related He also testified that the herniation at Ls Sl shown in the October 2004 MRI than it October 2003 was in Voorhies did not with the history he given it was opinion that s Mr was was his He stated opinion that it however was more likely than not related to the automobile accident Guidry unable to return to his was larger Dr Isaza testified that Dr explore L3 4 at the time of surgery that the L3 4 herniation Isaza When asked about L3 4 was It that was employment Dr as a heavy equipment operator because of both his lumbar spine and cervical spine With problems regard to Dr Voorhies On cross has multi level lumbar Dr herein Isaza to the lumbar was examination also asked the If you assume for lumbar spine and get that result of his cervical To Dr Isaza problems unrelated Q A spine Dr Isaza testified that he deferred acknowledged that Mr Guidry to the automobile accident at issue following minute you were able to treat the perfectly fine he d still be disabled as a a spine right perform his activity or heavy machine operator yes he s got multi level problems that we ve Conversely discussed here obviously in his lumbar spine In the event you to actually successfully treat his cervical spine he would still were be disabled from his occupation as a result of the problems in his lumbar spine correct Q Well A Mr we Guidry was testified at trial that that he a was d be limiting his standing and sitting forty three years old at the time of the accident although he hurt until about a was sore He stated that he Mr from the accident he did not realize month later discectomy in his lower back rather than He Mr a Guidry testified that he opted for fusion so he could go back to work previously had back surgery in 1989 which was successful Guidry wanted to continue working as a heavy equipment operator and Dr Voorhies told him that if the surgery was successful Mr employment of his bronchitis surgery Mr Guidry stated that surgery was but that it on was performed postponed for December 31 Guidry began walking and after about five up to walking legs He stated that most of his current a mile when he started he could return to his or a week because 2003 After the six weeks had gotten having back pain and numbness in his 8 problems are with his neck and that his back hurts now Guidry testified that he had Mr and then before the December 18 2003 accident On being treated for neck pain With regard in 1991 to his work cross not examination injured his neck he did not recall 9 history Mr Guidry stated that he was not working at the time of the accident because he was waiting for his back surgery testified that he job but terminated from his was not in He February of 2003 after working for Nichols Construction for approximately seven work force reduction went to work for another through company reduction October he was Mr the end of of work force or Guidry stated he then August 2003 at which time there He testified that November of 2003 except for planning a was he did not work in few days having back surgery and returning on there years in October was a another September He stated that to work In its oral reasons the trial court stated T he The plaintiff s plaintiff has multi level spine problems problem as a result from this accident clearly is his neck and cervical spine He needs mobility in that region to work as a crane operator That was his main employment all of his adult life This by itself would disable the plaintiff from that employment Dr Isaza testified the L 3 L 4 problem was more probably than not a result of the accident also and that his lower back limits would You prevent the plaintiff from working as a crane operator take your victim as you find him All the previous medical that Mr Guidry had neck and back problems previously even he is chronic now Further show possibly they didn t totally disable him to the point where The intervening accident December 18 2003 totally but man over time disabled this activities s family from his normal activities be it work activities regarding the argument that Mr Guidry was unemployed at the time of the accident the trial court stated But I am while the for a familiar job month is being from South Louisiana about people working working and then terminating if you will laid off or two back or a week or six months sometimes and then I don t that doesn t getting right impress me the fact that Mr Guidry was voluntarily underemployed or wasn t ever going to back to work He was just off at that time and I understand go that from the testimony So I do believe he s entitled to future and on past lost wages 9 The medical evidence indicates that Mr Guidry complained 1995 9 of some cervical pain in 1991 and It is well settled in he finds him and is tortious conduct injury Where defendant a So 2d 429 433 La Reck 1991 A disc excision problems Co Guidry had in performed was a which time he was off work due to past history of back problems working Mr surgery was Mr December The Guidry was not Thus despite a prevent him from Guidry did not decide to have surgery until the end of 2003 which in performed Mr December of 2003 Although successful was Guidry opted for the so that he could continue Dr Voorhies stated that the surgery in heavy equipment operator as a 1979 through August of 2003 at Guidry s back did microdiscectomy rather than the fusion procedure working and Mr reduction in work force a La 1989 at the L4 s level discovered in 2001 was 502 579 long history of lower back work restrictions but he continued to work on as preexisting a American Rent All Inc v Stevens 373 So 2d 498 v Mr herniated disc at the Ls Sl level placed defendant takes his victim compensate the victim for the full extent of his he must undisputed that is a negligent action aggravates s American Motorist Ins aggravation It jurisprudence that responsible for all natural and probable consequences of his condition or our Mr Guidry again complained of pain radiating into his leg in February of 2004 that pain had resolved by his next visit to Dr Voorhies office in April 2004 The evidence also showed that Mr had degenerative neck problems which The April 2004 level and 4 was bulging caused Guidry for neck was MRI of the cervical a at C3 4 spine revealed Additionally neurosurgical evaluation were most asymptomatic until the accident Dr Isaza also found it by the accident problems were on Dr June 20 a herniated disc at the C7 Tl likely that the herniation Allen S 2006 Joseph who at L3 saw Mr opined that Mr Guidry likely caused by the accident possible that the herniated disc Guidry at L3 L4 was also in s question and that it causally related to the accident at issue herein A court of appeal may not set aside absence of manifest SO 2d 840 844 La error or 1989 unless it is On review trial court clearly wrong an 10 a appellate s finding Rosell of fact in the v ESCO 549 court must be cautious not to re weigh the evidence would have decided the p 7 La and while 7 2 04 we to substitute its or 877 So 2d 89 95 may have found unable to say that the trial court proved that question Upon factual v Ferrellgas Inc as the trier of fact manifestly erred in concluding that the plaintiffs Thus given all of the medical testimony we cannot as well as Mr Deputy Sasso Therefore and notice according signal heed to is without merit to the defendants with all instructions of in finding proceed into the intersection Deputy Sasso police officer a s well as her never Ms complied Ms subsequent instruction Ms Horner violated her as clearly was The defendants assert that while Ms Horner initial s in Guidry s work say that the trial court Accordingly the defendants first assignment of error to we are Guidry would have been earning wages but for the accident Mr Horner free from fault failed 03 3024 review of the record The defendants also contend that the trial court erred with because it findings just thorough our differently sitting history despite his back problems wrong Bonin differently case own Horner to stop duty to comply ending duty to keep a sharp lookout All motorists have see that which ceasing duty to maintain in the exercise of Bergeron 05 1225 defendants also a never rely p on 6 La LSA App ordinary 1 Cir care a sharp lookout and should be 6 21 06 Theriot seen 939 So 2d 379 5 R 32 231A and 32 s6A which provide 383 as to v The follows The driver of any vehicle shall obey the instructions of any official traffic control device applicable thereto placed in accordance with the provisions of this Chapter unless otherwise directed by a traffic or police officer subject to the exceptions granted the driver of an authorized emergency vehicle in this Chapter LSA R S 32 231A No person shall fail or refuse to comply with any lawful order or direction of any police officer or weights and standards police officer invested by law with authority to direct control or regulate traffic LSA 5 R 32 s6A These statutes impose any lawful order or a duty on a motor directive of any vehicle operator to comply with police officer invested by law with the 11 authority to direct signals of a control regulate traffic irrespective of the instructions or traffic control device Under certain circumstances a Theriot 05 1225 at p motorist will be relieved of accident if he acted in accordance with directions of While directions of traffic officer do not a where the obligations a 7 939 So 2d 383 liability for causing completely relieve motorist of all a testimony shows clearly that the defendant motorist compliance with the directions of the traffic officer speed and in careful and prudent he manner cannot be at a slow charged with 05 1225 at p 7 939 So 2d 383 84 Theriot negligence an traffic control officer moved forward in a or It is also well settled that the allocation of comparative negligence is a factual matter within the discretion of the trial court and such determination will not be disturbed on USAA Cas Co Ins appeal in the absence of manifest 93 2238 4 p La App 1 Cir error 11 10 94 Thibodeaux v 647 So 2d 351 355 In the case sub judice northbound lanes of that time to Deputy Dicks testified that he walked Highway 16 to stop traffic but that there Meanwhile stop When turned and red then saw a Deputy Dicks saw Ms Horner pickup truck go past him to Horner testified as she She stated that she stopped said she had did not that see was In no traffic at proceed through being motioned kept going motioned out and she visibility problems and the sun might and the accident occurred approached the intersection was he out Deputy Sasso testified that he yelled and motioned to Ms Horner to stop but he thought the have been in her eyes because she truck was no Deputy Sasso had already stopped traffic in the southbound lanes of Highway 16 and signaled Ms Horner the intersection out into the sun was not she came out slowed Ms and Ms Horner blocking her vision Deputy Sasso try to stop her and the first time Ms Horner saw She the when it hit her reaching its finding of court noted that it considered no liability on the part of Ms Horner the trial applicable statutes and jurisprudence and stated 12 Also Ms Horner reading the cases and hearing the testimony and looking reports and the statements at the accident I don t find she had any liability because she was relying on two gentlemen wearing sheriff s bright green vest s with Sheriff on it to wave her out She was relying on these gentlemen officially in their official capacity to take care with her coming out into a major intersection Highway 16 So I really don t see her having any in that liability at the Once motioned out by Deputy Sasso Ms Horner was proceeding through the intersection at the direction of the officers Following directions of Officer Sasso to make a left turn no Ms Horner attempted evidence in the record that Ms Horner careful and prudent manner say that the trial court was Upon a was acting thorough and relying on the There is in any way other than in a review of the record clearly wrong in finding that Ms Horner we was cannot without fault CONCLUSION For the above and affirmed Costs of this foregoing appeal are reasons the assessed to the AFFIRMED 13 judgment of the trial court is appellants NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 CA 1976 MICHAEL GUIDRY AND WANDA GUIDRY INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD JONATHON GUIDRY VERSUS LIVINGSTON PARISH SHERIFF S DEPARTMENT ST PAUL FIRE AND MARINE INSURANCE COMPANY LIVINGSTON PARISH SCHOOL BOARD CHILDREN S EDITION DAYCARE GAYBE HORNER INTERSTATE INSURANCE UNDERWRITER S INC JOE SASSO ROBERT DICKS AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY BEFORE 1 ji 1J PARRO J back was presented were for actual wage loss for the accident in 783 So 2d 1276 a the evidence that Mr as a in heavy equipment operator a as finding that Mr result of his lower question To recover plaintiff must prove that he would have been earning wages but Boyette v United Services Auto Assn Believing that the Guidrys failed to prove 00 1918 by a La 4 3 01 preponderance of Guidry would have been earning wages but for the automobile I would reverse the award of respectfully dissent preponderate in favor of not related to the automobile accident in question 1279 to seems unable to return to work problems that accident McCLENDON AND WELCH JJ dissenting in part and concurring in part The evidence Guidry PARRO part Otherwise past and future lost wages I concur in the For this reason opinion of the majority I
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